Yesterday, the government’s Women and Equalities Commitee released its long-awaited report on transgender equality[1] The report is generally very positive in identifying a range of serious problems faced by transgender people and in making some important recommendations (especially in relation to healthcare provision, prison reform, depathologisation, and legal recognition of trans youth (16/17 year olds) and non-binary people). However, the committee side-stepped the important issue of prosecutions for ‘gender fraud,’ despite receiving written submissions on this subject. Accordingly, an important opportunity to address the travesty of such prosecutions has been missed.

Alex Sharpe is a professor at Keele University School of Law. She has been involved in transgender law reform and activism for over twenty years, and has written extensively on the criminalisation of so-called ‘gender fraud’ under the Sexual Offences Act. Alex has recently been interviewed by CBC Radio Canada on the Gayle Newland case, together with Professor Madden Demsey. Her interview can be found here.

On 15th September, Gayle Newland was convicted of three counts of sexual assault under the Sexual Offences Act 2003. She is currently awaiting sentence, though a custodial term has been indicated. The case is the latest in a series of so-called, and so far successful, ‘gender fraud’ based prosecutions that have come before English (R v Barker [2012] (unrep); R v McNally [2013] EWCA Crim 1051) and Scottish (R v Wilson [2013] (unrep)) courts. Barker and McNally received significant custodial sentences[1] and all convicted defendants have been placed on the Sexual Offenders Register for life.

Most of the media and legal coverage of the Newland case, like the cases of Barker, McNally and Wilson before it, has tended, unproblematically, to reproduce a fraud narrative, rather than challenge the ideological underpinnings of a worldview that makes fraud such an easy conclusion for courts and juries to draw. Of course, prosecution for ‘gender fraud’ is deeply troubling for other reasons. In the first place, prosecutions can be viewed as a significant example of criminal law overreach. That is, and irrespective of where we determine consent to end or deception to begin, the use of the criminal law to regulate deceptive, as opposed to coercive, sexual relations, can be viewed as an overly draconian and counter-productive measure. (more…)

Until very recently, I used to think transgender people were an especially vulnerable group in our society. It certainly appeared so. Didn’t they experience far more violence, discrimination and general incivility than most of us? In fact, I’m sure I remember reading somewhere (somewhere credible in fact) that 42% of transgender people never come out at work for fear of losing their jobs. Well you can understand it really. Indeed, and sorry for being pedantic, but wasn’t it the case, despite an obvious clear and present danger, that law, and the criminal justice system more generally, failed miserably to protect transgender people’s bodily and sexual autonomy? In fact, I might be mistaken (though I think you’ll find I’m not), but wasn’t it the case that the very definition of rape excluded transgender women so that cisgender men could basically rape them with impunity (see, further, my article ‘The Failure to Degenderise the Law of Rape: The Criminal Justice and Public Order Act and the Transsexual Rape Victim’ (1995) The Criminal Lawyer, 7-8). Of course, some things have improved. But none of this really matters, because this version of recent history (while true) is no longer fashionable.